It seems that Senator Mark Warner told James Wolfe to leak the Page FISA warrant to the New York Times. Wolfe (and Warner) were caught by the FBI, but then DOJ/FBI covered up the crime. Wolfe was not charged for leaking the top-secret FISA warrant. Rather, he was charged only for lying to the FBI.
Exactly who made the decision to reduce the charge against Wolfe from leaking to merely lying? Who approved that decision? What was the justification?
There are three additional contentions that sundance is making in connection with the Wolfe case, and they all suffer from the same problem.
First, sundance also maintains that DoJ/FBI have an official position that the Page FISA wasn't leaked by Wolfe. To support that he cites the Wolfe sentencing memo:
The very obvious problem with this--as Shipwreckedcrew is quick to point out--is that the FBI (and DoJ) are NOT saying they don't believe Wolfe did the leak. They're only saying, in effect, that they don't have the evidence to prove that beyond a reasonable doubt. I happen to believe that sundance is right, that Wolfe did the leak. The circumstantial evidence is very strong. And although I'm not a betting person, I would happily bet that every single FBI agent who worked that case also believes Wolfe did it. The problem is the lack of physical evidence--destroyed by Wolfe. Here's SWC's explanation:
The point made by the gov't is that it cannot show that Wolfe did disclose classified information because the forensic analysis did not uncover what it was that Wolfe sent Watkins.
[The passage from the Sentencing Memo] comes no where close to a definitive statement that Wolfe did not leak the FISA warrant. It only says the gov't can't make that claim at sentencing because it doesn't have proof of what those 82 pages were.
Proof. That's part of the rule of law--a crucial part that sundance just doesn't seem to get. If it were as easy as sitting down at a computer and compiling stuff from internet sites, there'd be no point to 3 years of law school and a grueling Bar exam, plus additional years of training and experience. We don't want--or I don't want--a country where the standard of proof for a crime falls short of proof beyond a reasonable doubt. It can be very frustrating. All investigators and prosecutors experience this, usually at a less consequential level: you're sure from the circumstances that you know what happened and who's responsible, but you lack proof beyond a reasonable doubt. And DoJ policy--sometimes honored in the breach--is that no charges should be brought on the hope that a jury can be convinced to convict on a lesser standard of proof. Again, that's about the rule of law, rather than what we can talk people into.
The next two points are at least implicit in this concluding passage from CTH:
... none of the more illegal activity is based on political lies; and all of issues point to a direct national security threat, including the overarching possibility of blackmail against those who are currently charged with intelligence oversight. Lastly, all of the events to cover-up the Wolfe leak involve direct criminal conduct.
Let's take the second point first. As I understand this, sundance is maintaining that everyone with knowledge of Wolfe's leak--and sundance presumes that that "everyone" includes most of the senators on the SSCI--is now subject to blackmail due to their guilty knowledge and complicity in the coverup. This, I take it, is what sundance means by "a direct national security threat, including the overarching possibility of blackmail against those who are currently charged with intelligence oversight."
Just as I accept the moral certitude that sundance is right about Wolfe, I also accept that most of the senators on the committee are complicit in this. Nevertheless, even the claim of a national security threat can't obviate the need for actual proof. I will also state my personal opinion that the "overarching possibility of blackmail" is overdrawn: if the FBI was unable to obtain the physical evidence, then I doubt that anyone else will. That's not blowing this off. If there's a way to reopen the case and obtain the evidence, I'm all for it. I'm just saying this based on what we actually know.
The final point has to do with sundance's references to "politics" as opposed to "criminality." This is his slam against AG Barr. What he's saying is that Barr's refusal to "criminalize politics" actually means that Barr is part of the coverup. Barr, he's saying, has labeled clear criminal leaks as "politics" and is refusing to act. In other words, he's saying that Barr is a criminal, too--I can think of no other way to understand this.
Once again, however, sundance stumbles over the issue of proof beyond a reasonable doubt as inherent in our American concept of rule of law. It's simply illogical to claim that a refusal to criminalize politics is a refusal to prosecute politicians. The two ideas are readily distinguishable. Sundance is blinded by his conviction of Wolfe's guilt--which most honest people can accept--to the degree that he's unable to separate that from the issue of proof. And so anyone in authority who points out those difficulties must be part of a criminal conspiracy. It's not logical, and in the circumstances it's unfair to Barr--who has shown a willingness to accept any amount of political heat in his dedication to reestablishing rule of law. Ask Michael Flynn or Roger Stone, for starters. Next to President Trump, Bill Barr is the most reviled man in America, and it's all about his steadfast adherence to traditional standards for the administration of the criminal justice system.
All fairminded people will acknowledge that sundance has performed important services. I have no problem with that. I take truth where I can find it, and I often take it from people with whom I don't entirely agree. But sundance is off the rails in his accusations against Barr and Durham, and to that extent has become part of the problem we face.
UPDATE 1: Two comments (below) raise important issues that I think I should address here, rather than in the comments section.
DOJ has Ali Watkins' evidence which may include the 82 pages unless Watkins was warned to destroy such evidence. The DOJ has been reluctant to pursue criminal activity by the 'press' for decades over 1st Amendment issues; the DOJ needs to get over that nonsense.
1. Actually, we don't know that DoJ has that evidence, do we? Do we know that they got a search warrant for her communications?
2. As for "getting over" "First Amendment nonsense" involving the press, in fairness that's not so much a DoJ issue as a SCOTUS issue. I happen to agree--and recently said so--that it's high time that the SCOTUS got over that nonsense. However, these actually are complicated issues. Do we really want to protect government secrecy to the extent that the government would like?
I could be wrong, but I assumed the "blackmail" angle on Senators was that Wolfe could expose PRIOR wrongdoing by Senators -- specifically that Senators on the Committee asked him to leak classified material to the media on various occasions, possibly including the CP FISA application, and that potential for blackmail for that was the impetus for SSCI Senators to intervene behind the scenes with DOJ to get Wolfe a plea deal to a lesser charge than leaking classified material.
But you could be right. On the other hand, I confined myself to the Page FISA angle for blackmail because sundance always emphasize "criminality"--not just wrongdoing, which we more or less take for granted in our legislators.
In my response to Mike Sylwester's comment (below) I get into the plea to a lesser charge. It's complicated. I do agree, as I said, that I am morally certain as to the general outline of what happened. If Barr can find a way to address this, I'd be far happier. However, for our purposes here, I want to play Devil's Advocate to some extent because sundance, IMO, goes beyond what the circumstantial evidence will actually support when I starts talking about Barr and Durham--which he does obsessively.
UPDATE 2: Since several commenters didn't read all my comments below, I'll rewrite my comment and use it as an update.
SWC did a tweet that illustrates why you need to be careful when sundance starts drawing legal conclusions about things he doesn't understand. I've rewritten SWC's tweet to greatly expand it and make it all more explicit:
SSA Dugan's affidavit--in which he maintained that Wolfe had leaked the Page FISA--was submitted for Wolfe's sentencing. As such, it was submitted as part of the sentencing package that DoJ approved. At sentencing DoJ was arguing for facts--the leak of the FISA--that would support a longer sentence as an 'enhancement'. The standard of proof for an enhanced sentence is 'preponderance of the evidence', NOT 'beyond a reasonable doubt.' Beyond a reasonable doubt is the standard for a guilty verdict at a trial, but preponderance is a MUCH lower standard. So, DoJ was arguing in its sentencing memo that the Court should conclude that--while Wolfe had not pled to the leak and the government had not proved it beyond a reasonable doubt--nevertheless the preponderance of the evidence supported such a conclusion. THEREFORE, Wolfe should receive a stiffer sentence for the false statement than he would ordinarily receive under the sentencing guidelines.
That actually works very much against sundance. IF this was a big coverup, DoJ would not have allowed that affidavit to be part of their sentencing recommendation--the prosecutor controls that, not the agent. The fact, therefore, that DoJ was willing to argue to the judge that the judge should conclude for sentencing purposes that the false statement plea related to a leak of the FISA (which, however, was never proved nor pled to) argues to the basic good faith of DoJ = not a coverup.
I highly recommend you follow SWC's continuing twitter war with sundance if you want to understand all this.